[11 FSM Intrm. 234]
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[11 FSM Intrm. 235]
ALIKSA B. ALIKSA, Associate Justice:
This matter was called for trial on October 31, 2002. Plaintiff represented himself, pro se. Defendant was represented by Albert Welly. The following witnesses testified at trial: Carlos Banaticla, Taylor Talley and Vernon Youngstrom. After the trial, I announced my decision in this case. I found that the Defendant is not liable to pay the A&E design fee of $1,000 to Carlos Banaticla. I found that the Plaintiff is liable to pay the Defendant the amount of $369.00 that is still due on Change Order # 1. I further found that the Plaintiff is liable to directly pay Carlos Banaticla the A&E design fee of $1,000. This memorandum explains my findings and reasoning.
I make the following findings, based upon the evidence received at trial. The Plaintiff contracted with Carlos Banaticla in 1999 to prepare the architectural and engineering design plan (A&E plan) for Plaintiff's new house. Mr. Banaticla prepared the A&E plan, which is dated August 25, 1999, approximately two years before construction began. The fee charged by Carlos Banaticla for preparation of the A&E design plan was $1,000. Mathias Mongkeya is listed as the owner on the plan. There is no contractor listed on the plan.
The funding for the Plaintiff's new house was provided by USDA Farmers Home Administration (FmHA). The A&E plan was approved by FmHA on June 14, 2001. Also on June 14, 2001, the Plaintiff and Defendant executed a construction contract, whereby the Defendant was to build Plaintiff's new house, pursuant to the specifications in the A&E plan. An inspection and payment schedule were also executed by the parties, and approved by FmHA. The construction contract did not specifically require the Defendant to pay the A&E design plan fee. However, the project cost estimate did include the A&E design fee of $1,000. Vernon Youngstrom testified that he did agree to pay the A& E design fee as part of the project cost, from the construction contract proceeds. Several months later, in November 23, 2001, Carlos Banaticla provided a written authorization to the Plaintiff to collect the A&E design plan fee on his behalf. Therefore, the Plaintiff in this matter has been authorized by Carlos Banaticla to serve as his representative and agent in collection of the A&E fee from the Defendant.
During the course of construction, on November 14, 2001, Change Order #1 was executed by the parties, for changes in the specifications for construction of the Plaintiff's new house. The total cost of Change Order #1 was $1,369.00, payable by the Plaintiff to the Defendant contractor. The Plaintiff was instructed by FmHA to pay the Defendant the amount of $1,369.00 for the change order amount. The Plaintiff did not pay the Defendant the full amount of the change order. The Defendant made his counterclaim against the Plaintiff at the trial, for the Plaintiff's failure to pay the $1,369.00 due to the Defendant for the Change Order # 1. The Defendant, who was not paid the change order amount by the Plaintiff, used the $1,000 A&E design fee to offset the cost of the change order.
Based upon the evidence presented, I found that both parties breached the construction contract. The Plaintiff breached the contract by failing to pay the Defendant for the change order amount of $1,369.00. The Defendant breached the contract by failing to pay Carlos Banaticla the amount of $1,000 for the A&E design plan. Pursuant to the Defendant's counterclaim, the Plaintiff is liable to the Defendant in the amount of $1,369.00 for the change order. Pursuant to the Plaintiff's claim, the Defendant is liable to Plaintiff in the amount of $1,000 for the A&E design fee. In the final calculation, after crediting the $1,000 A&E fee retained by the Defendant, the Plaintiff is liable to the Defendant
[11 FSM Intrm. 236]
in the amount of $369.00. The Plaintiff is also liable to pay Carlos Banaticla directly for the A&E design fee of $1,000.
III. Judgment .
Judgment is entered in favor of the Defendant and against the Plaintiff. The Plaintiff is liable to the Defendant in the amount of $369.00 for the amount still owed on Change Order # 1. The Plaintiff is also liable in the amount of $1,000 for the A&E design fee, which shall be paid directly by the Plaintiff to Carlos Banaticla.
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